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Supreme Court takes up petition against gay sex

New Delhi: The Supreme Court on Thursday issued notice to the Union government on a special leave petition (SLP) challenging the Delhi High Court judgment declaring Section 377 of the Indian Penal Code unconstitutional and decriminalising unnatural sex among consenting adults. Earlier unnatural sex was a criminal offence under this Section.

A Bench of Chief Justice K.G. Balakrishnan and Justice P. Sathasivam also issued notice to Naz Foundation, an NGO, and other respondents, and posted the matter for further hearing to July 20.

Praveen Agrawal, counsel for the petitioner, submitted that there had been seven cases of gay marriage after the July 2 judgment. This was likely to affect the institution of marriage.

The CJI said: “We have not changed the definition of marriage. The police had not been registering cases in such matters. Though the law has been in force since 1860, there have been only a handful cases under the penal provision, except for paedophile cases. For gay sex, to my knowledge, no body has been prosecuted.”

When counsel pleaded for a stay of the operation of the judgment, the CJI said that an interim order could be considered only after hearing the parties concerned.

The petitioners, Suresh Kumar Koshal, an astrologer, and Dr. Mukesh Kumar Koshal, submitted in their SLP that they were deeply hurt by the judgment “inasmuch as it seriously affects them and fellow countrymen in all spheres of their lives, personal as well as social.” A rampant increase in homosexual movement after the impugned order could not be ruled out.

The judgments in various countries that permitted homosexuality, which was relied upon by the High Court, were rendered in a different set of social, economic, constitutional and cultural background. “Application of those principles ipso facto, without any reference to the background and circumstances leading thereto, is itself a sufficient ground for striking down the impugned judgment.”

They said the judgment would result in spread of HIV virus “as it has been amply proven that the infection was contracted through such sexual acts. We have to look at our own scriptures to seek guidance and they are against such behaviour in our society. If such abnormality is permitted, then tomorrow people might seek permission for having sex with animals.”

The petitioners said the High Court had completely lost sight of the fact that the Indian society still remained, by and large, conservative. The “shining nature of Indian societies found in metros [which constitute less than 6 to 7 per cent] cannot represent the whole Indian society for understanding the social and cultural Indian net.”

The SLP sought quashing of the judgment and an interim stay of its operation.